Why the SEC Needs an Outsider as Its Next Chairman
The Litigation Daily
Think outside the boroughs.
That's my advice to the White House as it ponders who should be the next chairman of the Securities and Exchange Commission. Since Mary Schapiro announced in late November that she will step down, speculation has mainly focused on people with close ties to Wall Street and the financial industry.
That's the wrong approach. For all the strides Schapiro made after the disastrous tenure of Christopher Cox, the SEC is still tainted by the perception that it's a captive of Wall Street. And, I believe, the problem is more than optics. Now I don't subscribe to the scarily dark view of the SEC espoused by Rolling Stone's Matt Taibbi. But, as I've written previously, I do think the agency is hampered by a culture of coziness with the industry it's supposed to be policing.
For that reason I don't want to see Robert Khuzami, the SEC's current chief of enforcement, become the next chairman. I don't know Khuzami, but he seems like a dedicated, hard-working, well-intentioned public servant. Yet, he will never overcome his pedigree problem. In his four years on the job, he hasn't been able to shake suspicions that he can't or won't be tough on Wall Street because he's the former general counsel for the Americas at Deutsche Bank AG--one of the banks at the heart of the subprime mortgage crisis. Add the hard fact that the SEC has failed to hold high-ranking bank officials responsible for the financial crisis, and you've got a real credibility problem.
Another name that's been floatedin the press at leastseems downright shocking to me. Sallie Krawcheck may be a brilliant, terrific person, but she's spent most of her career on Wall Street, most recently at Bank of America and Citigroup. Maybe since she was booted from BofA in a management shakeup she's got a fire in the belly to go after the people she worked with, but I wouldn't want to count on it.
Joe Nocera, in an op-ed column for The New York Times, championed Latham & Watkin's Sean Berkowitz to head the SEC. As Nocera noted, when Berkowitz was a federal prosecutor he led the Enron task force and prosecuted Jeffrey Skilling and Kenneth Lay. "So he knows how to nail the bad guys, which has been a problem for the current S.E.C.," Nocera wrote.
Berkowitz isn't a bad suggestion, but I'm not even comfortable with someone who's spent the last six years at a firm like Latham, with its close ties to the financial community. I fear that Berkowitz has spent too much time convincing others (and maybe himself) that his corporate clients have never done anything wrong.
So who do I want? My first choice would be Richard Cordray, the hard-charging former Ohio Attorney General and current director of the Consumer Financial Protection Bureau. He's got a great resume: editor-in-chief of the University of Chicago Law Review, clerk for Justice Anthony Kennedy, and five-time Jeopardy! champion. And while he did work briefly at Jones Day's Columbus, Ohio, office as an associate, he otherwise hasn't been on the payroll of corporate America. The problem with Cordray, however, is that the CFPB needs him, and he can do a lot of good there.
Last year, I wrote a column that asked: What if Irving Picard ran the SEC? I argued that the SEC could use more of the moxie and fearlessness shown by Picard in his daring efforts to recover money for people swindled by Bernard Madoff. Picard isn't afraid to sue big banks and powerful people. And whilehe hasn't always been successful, he pushes ahead undeterred. Most important, he can point to more than $9 billion in recoveries or settlements. I'm not suggesting he has a chance of becoming the next SEC chairman, but we could use someone in his mold.
The SEC needs a brave outside agitator, not a smooth inside operator.
This article originally appeared in The AmLaw Litigation Daily.